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R v Likio [2006] TOLawRp 37; [2006] Tonga LR 387 (18 December 2006)

IN THE SUPREME COURT OF TONGA

R

v

Likio

Supreme Court, Nuku'alofa
Ford CJ
CR 260/2005

7, 10, 13-15 November and 13 December 2006; 18 December 2006

Criminal law – charges were rape, indecent assault and housebreaking – question of identification – convicted

The accused faced one count of rape, one count of indecent assault and another of housebreaking. It was alleged that on 27 April 2005 he forcibly entered the home of the 15-year-old complainant, carried her to a bedroom, threatened her with a knife and subjected her to the acts of indecency and rape particularized in the indictment. The accused denied the charges. He gave evidence and called witnesses in support. He contended that he was home in bed sick on the day in question suffering from influenza, dengue fever and a boil on his right knee. He was critical of the police identification parade and contended that the complainant identified him at the instigation of the police inspector.

Held:

1. When identification was in issue the court must always take particular care because in the realm of the criminal law cases involving mistakes as to identification resulting in a miscarriage of justice were legendary. The approach taken to the problem of visual identification was that outlined in R v Turnbull [1977] QB 224.

2. It was undesirable for the police to do nothing about the question of identification until the accused was brought before a magistrate and a witness for the prosecution was then asked some questions such as "is that the man?". The correct procedure was for the police to hold an identification parade before the trial or preliminary examination, placing the accused with a sufficient number of other people, leaving the witness to pick him out if he or she can, without assistance.

3. Upon a consideration of all the evidence, the court held that the Crown had established all the necessary elements of each charge beyond reasonable doubt and the accused was convicted.

Cases considered:

R v Falemaka (Supreme Court, CR 208/06, 16 November 2006)

R v Lolohea (Supreme Court, CR 16/06, 5 April 2006)

R v Talanoa [2006] Tonga LR 101

R v Turnbull [1977] QB 224

Counsel for the Crown: Mr Sisifa
Counsel for the accused: Mr Kaufusi

Judgment

Introduction

[1] The accused is facing one count of rape, one of indecent assault and another of housebreaking. The incident giving rise to the charges is alleged to have taken place at Navutoka on 27 April 2005. There was also another count of common assault but during the course of the hearing it was pointed out to Crown counsel that such a charge presently falls within the exclusive jurisdiction of the Magistrates' Court.

The case for the prosecution

[2] The Crown case is that on the day in question the 15-year-old complainant, who suffers from what was described as "a mild physical disability affecting her speech and balance" was home alone minding her parents' one-year-old foster child. She heard a male voice calling out for her mother. She looked out the window and told the man that her mother had gone to town, he then asked for her father and the complainant said that he had gone to town also. The man asked how long they had been gone for and the complainant told him that it had been for a while. The man then asked if anyone else was at home and she told him that there was only herself and baby. The man then left and the complainant went into the kitchen to wash the dishes and clean up.

[3] Not long afterwards, the man returned and forcibly entered the house through the back door. The complainant attempted to run to the front door but the man caught her in the hallway and carried her to a bedroom where he proceeded to take off her clothes, threaten her with a knife and subject her to the acts of indecency and rape particularised in the indictment. The complainant fainted. Later she was awoken by the baby crying and she then realised that she was still naked. She dressed herself, grabbed the baby and ran to a neighbour and complained that she had been raped. When her parents returned, a formal complaint was made to the police.

The prosecution witnesses

[4] The first witness for the Crown was the complainant's 47-year-old mother. She explained that she and her husband ran a small shop at the front of their home. On the day in question her husband was travelling into Nuku'alofa and the complainant told her mother that she should also go to town with her father and she would stay at home and mind the child. The couple closed the shop and left for town at approximately 11 a.m.

[5] When they returned home at around 3 p.m., a neighbour was at home with their daughter and they explained what had happened. Everyone cried and the mother asked the daughter if she knew who the man was. According to the mother's evidence, the daughter replied that it was a baldheaded man who usually comes to the shop to buy things and she had seen him going to evening service at the Free Church of Tonga across the road from their home but she did not know his name. She also told her mother that when the man lifted her onto the bed she looked up and saw that it was the same man she had seen outside the living room window.

[6] The complainant's mother told the court how the matter had then been reported to the Mu'a police and later the complainant had been taken to hospital for examination. The mother also gave evidence about an identification parade that took place at the Mu'a Police Station the day after the incident. She said that there were eight other bald-headed men in a lineup with the accused and the officer in charge, Inspector Soane Naufahu, had asked her daughter to first walk straight to the end of the line and then to walk the line for a second time and on the second occasion she was to stop in front of the person who had come to her home and point him out. The mother said that when her daughter pointed the man out as the accused she (the mother) cried because he was her cousin from Manuka. The accused's father was her uncle.

[7] In cross examination the mother said that she was watching her daughter as she walked along the line-up on the first occasion and she saw her stop and look up at the accused and, at the same time, the accused rolled his eyes and looked up at the ceiling. She said the police officer then told all the men in the line-up to look straight ahead. When the complainant walked the line on the second occasion and pointed out the accused, the police photographer took a photograph capturing the moment and the photograph was produced as an exhibit.

[8] The police photographer also produced some helpful coloured photographs of the scene at the complainant's home taken shortly after the incident, which included a photograph of the bed on which the complainant was allegedly raped. The mother confirmed in cross examination that there were no bloodstains on the bed but she said that she had noticed a "little blood" on the complainant's underwear.

[9] The 15-year-old complainant gave evidence consistent with the Crown case as outlined by the prosecutor. She told the court that she knew the accused "very well" because she had seen him when he came to their shop and she had also seen him attending some evening services at the Free Church of Tonga across the road from her home. She explained that when the man first called out for her mother he was standing outside one of the louvre windows in the living room. She walked over to the window, pulled the curtain to one side and was talking to him through the louvres (some of the louvre panes were missing). She could see the man clearly and she identified him as the accused in court although, at the time she saw him outside the window, she did not know his name. The accused has a very distinctive completely bald head. The complainant said in evidence that when she told him that her mother had gone to town the man asked for her father and she told him that her father had also gone to town. He asked how long they had been gone for and she replied, "for a while". The man then asked who was at home with her and she replied, "just me and baby." The man then walked away in the direction of the cemetery next door. At that stage he was wearing long "army coloured" pants and a black T-shirt. The complainant moved to the kitchen and began doing the dishes.

[10] A short time later the man returned to the house and he asked the complainant to open the back door but she refused. The only lock on the door was a bent nail holding it in a closed position and the man kicked it open and entered the house. The complainant said that at that stage he was wearing short pants, a black T-shirt and he had "something like a balaclava" over his head. The complainant described what then happened. She said that she tried to run to the front door of the house but the man caught up with her in the hallway. He lifted her up and carried her to the bedroom. He then took off her clothes and his own clothes and he sucked on her left breast. He then inserted his penis and she felt pain in her vagina and she called out, "go away". She said that the man then took out a small black handled knife and told her to keep quiet or he would stab her. In this same context, while giving evidence, the complainant used the words "kill you" but, because of her speech impediment, the translator was unable to incorporate those particular words into a coherent sentence. The complainant told the court that after that she could not remember anything else until she was later woken by the sound of the baby crying. At that point she realised that she was still naked and so she quickly got dressed, grabbed the baby and ran to her neighbour's house.

[11] The complainant said that when she later told her parents what had happened the neighbour was present and they all cried. Her father went outside and could not look her in the face but a man from the church then came over to their home and said a prayer for them all. The complainant described how a formal complaint was later made to the police and she gave the police a statement recording all that had happened. In reference to the subsequent police line-up, the complainant said that she had been told by the officer that on the first occasion she was to walk straight across to the other side of the line and then on the second occasion she was to walk the line again and point the man out. She said that, on the first occasion, when she came to the accused she stood and looked at him and he looked at her and then his eyes turned upwards. She said she stood looking at him but the police officer told her to keep walking to the other end of the line. On the second occasion she walked back and pointed out the accused.

[12] In cross-examination, the complainant was challenged as to how she could identify the man who assaulted her if his head had been covered. She said that she was still able to see his eyes. She said that she knew the man "very well" but she did not know his name. She had seen him at their shop and she had seen him attending evening service at the church over the road from her home. She also told the court that she recognised the voice of the man who threatened her with the knife as the voice of the man she had seen and had talked to through the living-room window. Mr Kaufusi asked her whether she was having her monthly period at the time and she replied that she did not know.

[13] The officer in charge of the Mu'a Police Station, Inspector Soane Naufahu, gave a slightly different account of the police identification parade to that given by the complainant and her mother. He said that when the complainant first entered the room where the nine bald-headed men were lined up she looked at them all and as soon as she saw the accused she cried. The officer said that he calmed her down and told her that on the first occasion she was to walk the line and just look at the men and then when she walked the line the second time she was to point the man out. He said that she did that and when she identified the accused, he was photographed.

[14] Inspector Naufahu produced an unsworn record of interview taken from the accused and other police documentation. The officer was cross examined closely as to why it was that, although the accused had been taken into custody on the night of 27 April 2005, the statement was not taken from him until 2 May 2005. The witness explained that the accused had been taken before a magistrate on 28 April 2005 and the magistrate had then ordered that he be kept in custody until 3 May 2005 which was the date of the next sitting of the Magistrates' Court at Mu'a. Inspector Naufahu said that in the meantime they continued making inquiries into the case and interviewing other witnesses. There was no challenge on the voir dire to any of the police documentation.

[15] The next witness called for the Crown was nine year old Soane Maile. She said that she was related to the accused, who she described as "a bald-headed man", and she said that he often came to her home. She recalled the 27th of April 2005. She said that while she was walking home from school for lunch that day she saw the accused changing his clothing alongside "Nesi's grave" at the cemetery next door to the complainant's home. When the witness was first asked why she remembered the 27th of April, she replied, "because that was the day the accused "raped" (the complainant)." In cross-examination, the witness told the court that after the accused changed his clothing, she saw him walk towards the complainant's home and enter the house through the backdoor. In answer to a question from Mr Kaufusi, however, the little girl admitted that she had been told about the "rape" and about how the accused had entered the complainant's house by the complainant's mother on the Monday prior to her giving evidence. Given these admissions, the girls age and the highly prejudicial nature of her evidence, I have decided that it would be dangerous for the court to rely upon any part of what she told the court and I, therefore, put it all to one side.

[16] The Crown also called evidence from 35-year-old Lisimoni Finefeuiaki who was one of the complainant's immediate neighbours. She recalled that between 12 and and 1 p.m. on 27 April 2005, the complainant arrived at her place crying and carrying the baby and saying that a man had assaulted her, taken her to the bedroom and raped her. The witness said that she was not saying the word "rape" clearly. When asked by the court to explain what she meant by that remark, the witness said that the complainant kept saying the word "ohooho" whereas the Tongan word for rape is "tohotoho". The witness attributed the complainant's mispronunciation in leaving out the "T" sound to her speech impediment.

[17] Lisimoni said that the complainant told her that she did not know the man's name. For her part, she decided not to ask the complainant any more details about what had happened because she was crying and very upset. She took her back to her home and waited for her parents to return from town. When they eventually returned sometime between 2 p.m. and 3 p.m., they were told what had happened and the witness said that "everyone cried."

[18] Another witness called for the Crown was a former police officer, Latiume Fungavai. He told the court that he arrested the accused at his home around 8 p.m. on the 27th of April 2005. He also gave evidence about the identification parade carried out at the Mu'a Police Station the following day and about the unsworn statements later taken from the accused. The witness said, in relation to the record of interview, that Inspector Naufahu actually asked the questions, he (the witness) then wrote each question down but it was the accused himself who, in his own handwriting, supplied the answer to each question.

[19] In cross-examination the former police officer was asked whether the accused was sick at the time of his arrest. The witness replied that when he went to the accused's home, he met a child and he told the child to go and call the accused out of the house. The accused then came out but the witness said that he was not aware that he was sick. He was then asked whether he had noticed that the accused was limping and suffering from a boil. That evidence touched upon an important part of the accused's defence. The witness said that when the accused realised that he was being taken to the police station, he went back inside the house to change his clothing but at no point, at that stage, did he see him limping. On the way to the police station, however, the accused told the officer that he had a boil on his leg and the witness said that when the accused walked from the police vehicle into the police station he appeared to be limping. When they entered the light of the police station the witness noticed fresh "chewed up green leaves" from the Tongan medicine tree on one of the accused's knees (the accused was wearing shorts) but he said that he could see no swelling around the knee and he would have expected there to have been swelling if he was suffering from a boil.

[20] When Inspector Naufahu was in the witness box he was also asked in cross-examination if he had been told by the accused that he was suffering from a boil. The inspector said in response that the accused claimed to have a boil and the Inspector noticed the leaves on his leg but he said, "I asked him where was the boil and he pointed to his knee but I couldn't see any boil and I did not see him limping once during the whole time he was held at the police station."

[21] The final witness for the Crown was Dr Makameone Taumoepeau. The 62-year-old doctor has been a gynaecologist at Vaiola Hospital for some 27 years. He carried out an examination of the complainant on 3 May 2005. His findings were that the hymen was still intact but there was an area of skin abrasion about 2 cm wide on the right wall of the entrance to the vagina where the skin had not completely closed and he said that such injury could have been caused by trying to insert a blunt instrument such as a penis into the vagina. The doctor's conclusion was that penetration had taken place on the day of the alleged rape in spite of the hymen being intact. He postulated that the most likely explanation for the hymen still being intact was that the male had ejaculated before breaking the hymen. The doctor told the court that given such a scenario, although the complainant was a virgin, he would not have expected to find an emission of blood.

The defence evidence

[22] The 39-year-old accused elected to give evidence. He described his occupation as, "looking after the family." He told the court that he was home in bed sick between the 15th and the 27th of April 2005 suffering from influenza and dengue fever. On the 27th he was also suffering from a boil on his right knee. He recalled the night of his arrest. He said that he was not told why he was being taken to the police station and on several occasions in the vehicle a police officer asked him if he knew why he was being taken to the police station and on each occasion he replied that he did not know.

[23] The accused told the court that he was placed in a cell overnight and the following day he took part in a police identification parade with eight other mainly bald men. He said that when the men were lined up, the police officer told them that "the Honourable Judge" was going to come. He said that the complainant was then brought into the room and told to walk to the end of the line-up. She did and then she started to walk back to the doorway but Inspector Naufahu told her to come back and have another look. The accused said that on the second occasion when the complainant reached him (the accused), Inspector Naufahu said to her, "point him out, is it him? Is it him?" And the girl then pointed to him. The accused said that if the Inspector had not said that to the girl then she would not have pointed him out. Earlier Mr Kaufusi had, quite properly, put that evidence in cross-examination to the Crown witnesses and they denied that anything like that had taken place.

[24] The accused said that after he was told what he was being arrested for, he told the police that it wasn't him but he was taken before a magistrate and kept in custody. He said that each day Inspector Naufahu would ask him how things were, or words to that effect, and he would deny that it was him and he would then be placed back in his cell. He said that in the end, he agreed to make his statement to the police because Inspector Naufahu had told him that if he insisted on lying then he would be locked up and, "I felt as if I was going to die."

[25] When asked about the complainant and her family, the accused said that although he had met the complainant's mother on many occasions at family gatherings, he had never been to their shop and he had never been to evening service at the Church across the road from their house. He said that he had never seen the complainant before the police identification parade and he did not know her. Referring to the alleged incident, the accused said that he was home sick at the time suffering from the illnesses he had described.

[26] The second witness called for the defence was 79-year-old Uili Manumu'a from Navutoka. He told the court that he recalled the 27th of April 2005 because at approximately 9 a.m. that day he took a bicycle tyre over to the accused's home at Manuka to get it repaired and the shopkeeper at a shop close to the accused's house told him that the accused was sick. When asked by the court how he knew that it was the same day, the witness replied that on that same evening the story came out that the accused had done something to the girl and that was the same day that he had taken the bicycle tyre over to the accused's place.

[27] The accused's 80-year-old father also gave evidence of alibi for the defence. He told the court that the accused was confined to his bed for 12 days from 16 April 2005. He said that he looked after him during that period and the only time that he did not know of his whereabouts was when he (the witness) was asleep. He said that the first time that the accused had gone out of the house was on the evening of the 27th of April when he (the father) had suggested to him that he should go and stretch his legs with a volleyball game. The father said that when the police arrived for the accused that same evening, he and his late wife were not at home because they had gone down to the beach. He said that it was not until 10 p.m. or 11 p.m. on the 27th of April that he was awoken by his foster son and told how the police had and taken the accused. The father said that his reaction was that it was a good thing that the police had taken the accused because "maybe he had stolen something."

[28] The father said that after the accused had been released from police custody he came home and told his parents that he had lied to the police so he could be let out of custody. The father continued in cross-examination:

"A. We burst out crying at what he had said.

Q. What had he said?

A. My dear parents. I thought if you were to tell the truth it would be something good but I had told the truth but that had led me to great difficulty. I felt as if I was going to die."

The father said he told the accused that it was alright if he lied because the good thing was that he was alive.

[29] The final witness for the defence was 15-year-old Haileni Likio who was the previous witness's foster son. He confirmed that the accused had been sick. He said that he was able to confirm that the accused was in bed at the time of the alleged rape because it was the school lunch break and his mother had prepared food for the accused and the witness said that he had taken the food into the accused's bedroom but the accused returned it because he was suffering from diarrhoea. In cross-examination the witness said that he had not gone to school that day because he also had been sick. The witness confirmed that the accused was also suffering from influenza, dengue fever and a boil.

The law

[30] There was no dispute over the essential elements the Crown is required to establish beyond reasonable doubt in order to make out a charge of rape, indecent assault or housebreaking. They have recently been considered by this Court in R v Talanoa [2006] Tonga LR 101; R v Falemaka (Supreme Court, CR 208/06, 16 November 2006), and R v Lolohea (Supreme Court, CR 16/06, 5 April 2006), respectively. I will not repeat them.

[31] When identification is in issue, the court must, of course, always take particular care because in the realm of the criminal law cases involving mistakes as to identification resulting in a miscarriage of justice are legendary. The approach taken to the problem of visual identification is that outlined in R v Turnbull [1977] QB 224.

Discussion

[32] Every point that could possibly be made on behalf of the accused was forcefully made by defence counsel in his closing submissions but at the end of the day the case falls to be determined on the issue of credibility. In relation to the alibi defence proffered by the accused, I did not find his explanation that he was at home sick in bed at the time of the alleged rape either convincing or credible. The accused's father struck me as being a shrewd and cunning person and I suspect that he orchestrated the alibi defence. Again, I did not find him a convincing or credible witness and the same goes for his 15-year-old foster son. The elderly man with the bicycle tyre requiring repairs appeared to be a convincing witness but his evidence about the accused being sick on the day of the incident was hearsay and there is other evidence from the accused's own witnesses which makes it clear that the witness must have been mistaken when he told the court that on the evening of 27 April the story had come out that the accused had done something to the complainant. I am satisfied that the story could not have circulated in the witness's village on the evening of the incident. The accused, for example, said that he had no idea why he was taken to the police station. The 15-year-old foster son told the court that he went to bed straight after the police took the accused away and the father obviously had no idea why the accused had been taken by the police. He told the court that he thought that his son may have "stolen something". Neither could the story have emanated from the complainant. She freely admitted that she did not know the name of her attacker.

[33] Having rejected the alibi defence, it is necessary for me to return to the Crown case because, before a conviction can be entered, the Crown must have proved every element of the charge beyond reasonable doubt. I found the young complainant a convincing and totally credible witness. After listening intently to all her evidence, including her answers to a lengthy and searching cross-examination, I have no doubt that what she told the court was the truth and that her attacker was indeed the accused. In spite of her speech impediment, I found the complainant an impressive witness in every sense of the term.

[34] The police are to be commended for organising an identification parade with eight other bald or partly-bald men. The learned authors of Cross on Evidence 4th Australian edition (1991) state [1360]:

"It has been held to be undesirable for the police to do nothing about the question of identification until the accused is brought before the magistrate, and then asked a witness for the prosecution some such question as "Is that the man?". The correct procedure is for the police to hold an identification parade before the trial or preliminary examination, placing the accused with a sufficient number of other people, leaving the witness to pick him out if he can, without assistance."

Although there was a slight discrepancy in the prosecution evidence relating to the identification parade in the present case, I am satisfied that the correct procedure was followed and there was no miscarriage of justice. I specifically reject the accused's version of this event.

[35] Although corroboration is not an essential element in the charge of rape or indecent assault, I find ample corroboration in the accused's own statements to the police. In his record of interview he freely admitted entering the dwelling house and the subsequent indecent assault and rape. He was asked:

"Q. Why had you carried out this rape during the day?

A. It was convenient because she was by herself.

Q. How did you know that (the complainant) was by herself?

A. I asked her."

In other parts of the record of interview, the accused agreed that he held a knife to the girl's neck so she wouldn't say anything and when he had sex with her, she fainted. As already noted, there was no challenge on the voir dire to that statement and, in any event, I reject any suggestion of duress or coercion. I am satisfied that the record of interview was given voluntarily. The answer to each question was written by the accused in his own handwriting.

[36] Defence counsel submitted strongly that, in relation to the charge of rape, the doctor's finding that the complainant's hymen remained intact proved that there had, in fact, been no penetration. Mr Kaufusi described the accused as "a big strong man" and the complainant as "a little girl" and he submitted that, "if the complainant had been raped as she alleged, I have no doubt that the hymen would not be intact."

[37] The intentional penetration of the genitalia of a woman by the penis of a man is an essential issue in the offence of rape but the degree or extent of penetration is quite irrelevant. If there is any penetration at all, no matter how slight or for how short a time, it will be sufficient. There does not have to be a full act of intercourse in the sense of there being ejaculation by the male.

[38] In the present case, because of the delay in the complainant's medical examination, the doctor was unable to confirm whether or not there had been ejaculation. The doctor did explain, however, that the most likely explanation for the abrasion injury he described to the right wall of the entrance to the vagina was that the male had ejaculated before the hymen was broken.

[39] There is an unchallenged comment in the police record of interview that might lend support to the scenario described by the doctor. It is noted in the record that halfway through the accused's interview at the police station, he asked if he could be allowed to go to the toilet "because he had an erection." That observation would tend to suggest that perhaps the accused has problems controlling his basic sexual urges.

[40] It is equally conceivable, of course, that the accused decided to discontinue his violent attack on the complainant when she blacked out and lost consciousness. Whatever the explanation, the important point is that the Crown need only establish penetration, not ejaculation, and I am satisfied beyond doubt that penetration did occur.

Conclusion

[41] For the foregoing reasons, I find that the Crown has succeeded in establishing all the necessary elements of each charge beyond reasonable doubt and the accused is convicted accordingly.